Replies

The two EO’s are not the same in intent.

Pres. Bush

http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2001_register&docid=fr05no01-104.pdf

Obama

http://edocket.access.gpo.gov/2009/pdf/E9-1712.pdf

Example - Obama’s:

“Sec. 4. Claim of Executive Privilege by Former President.

(a) Upon receipt of a claim of executive privilege by a
living former President, the Archivist shall consult with
the Attorney General (through the Assistant Attorney
General for the Office of Legal Counsel), the Counsel to
the President, and such other executive agencies as the
Archivist deems appropriate concerning the Archivist’s
determination as to whether to honor the former President’s
claim of privilege or instead to disclose the Presidential
records notwithstanding the claim of privilege.

Any determination under section 3 of this order that
executive privilege shall not be invoked by the incumbent
President shall not prejudice the Archivist’s determination
with respect to the former President’s claim of privilege.

(b) In making the determination referred to in subsection (a) of this section, the Archivist shall abide by any instructions given him by the incumbent President or his designee unless otherwise directed by a final court order.

The Archivist shall notify the incumbent and former Presidents of his determination at least 30 days prior to disclosure of the Presidential records, unless a shorter time period is required in the circumstances set forth
in section 1270.44 of the NARA regulations. Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney
General for the Office of Legal Counsel). The copy of the notice for the former President shall be delivered to the former President or his designated representative.”

~ ~ ~

President Bush’s

“1) When the former President has requested withholding of the records:

(i) If under the standard set forth in section 4 below, the incumbent President concurs in the former President’s decision to request withholding of records as privileged, the incumbent President shall so inform the former President and the Archivist.

The Archivist shall not permit access to those records by a requester unless and until the incumbent President advises the Archivist that the former President and the incumbent President agree to authorize access to the records or until so ordered by a final and nonappealable court order.

If under the standard set forth in section 4 below, the incumbent President does not concur in the former President’s decision to request withholding of the records as privileged, the incumbent President shall so inform the former President and the Archivist.

Because the former President independently retains the right to assert constitutionally based privileges, the Archivist shall not permit access to the records by a requester unless and until the incumbent President advises the Archivist that the former President and the incumbent President agree to authorize access to the records or until so ordered by a final and nonappealable court order.”

~ ~ ~ ~

The controlling heavy hand of -0 is obvious to me.